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CLASS 46


Now in its twelfth year, Class 46 is dedicated to European trade mark law and practice. This weblog is written by a team of enthusiasts who want to spread the word and share their thoughts with others.

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Anthonia Ghalamkarizadeh
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TUESDAY, 4 FEBRUARY 2014
Portugal: pocket protection

On 6 October 2005, RIGHT-ON CO., LTD (‘RIGHT-ON’) applied for the registration of the following sign:

for ‘Clothing; jeans (clothing); t-shirts; polo shirts; sweat shirts; sweaters; gloves (clothing); socks; belts (clothing); footwear; sports shoes; mountaineering boots; sandals; headgear for wear; caps (headwear); hats’ (International Trade Mark no. 861019, in which Portugal was one on the designated countries).

On 29 January 2007, INPI refused the protection of the sign, under articles 238(1)(b) and 223(1) of the Industrial Property Code (trade marks which are devoid of any distinctive character).

RIGHT-ON appealed INPI’s decision, claiming that, for several years, jeans manufacturers have used shapes, designs and stitching in jeans’ back pockets as distinctive signs and that there were several registered trade marks protecting such type of signs under class 25. It further argued that the shape was not necessary, functional or capable of giving substantial value to the goods that it aimed to distinguish; on the contrary, it was an original, random and expressive sign that the public would perceive as a trade mark.

On its judgement (Case no. 486/07.2TYLSB, published on Industrial Property Bulletin no. 023/2014, of 3 February), the Commercial Court of Lisbon held that the three-dimensional sign did not consist exclusively of the i) shape which results from the nature of the goods, ii) usual shape of the goods, iii) shape of goods which is necessary to obtain a technical result, iv) shape which gives substantial value to the goods. However, the court found that the sign was devoid of any distinctive character, as the wavy design of the pockets could not be differentiated from any other design for the same goods and, as a result, would not be capable of resulting in a lasting memory for the consumer. Accordingly, the court considered that the trade mark was devoid of any distinctive character and, although competitors could use different signs for the same product, they should not be prevented from using this particular sign. Therefore, it refused to grant protection to the trade mark. 

Posted by: Pedro Malaquias @ 17.13
Tags: Portugal, INPI, Commercial Court, Absolute Grounds,
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